IN THE CASE OF:  	

      BOARD DATE:  	24 April 2013

      CASE NUMBER:  	AR20120017910
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined the discharge to be proper and equitable and voted to deny relief.



      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT'S REQUEST AND STATEMENT:

1.  The applicant requests his under other than honorable conditions discharge be upgraded to  honorable.

2.  The applicant states, in effect, that he was discharged many years ago and now needs the benefits for the time he served in the Army.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			19 September 2012
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				12 December 1997
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, AR 635-200 								Chapter 10, KFS, RE-3
e. Unit of assignment:				B Co, 1st Bn, 320th FA Rgt, Fort Campbell, KY
f. Enlistment Date/Term:			26 July 1995, 2 years, 17 weeks
g. Current Enlistment Service:		2 years, 4 months, 17 days
h. Total Service:				2 years, 4 months, 17 days
i. Time Lost:					None 
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		13B10, Cannon Crewmember
m. GT Score:					100
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			NDSM, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				No
SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 26 July 1995, for a period of 2 years and 17 weeks.  He was 18 years old and a high school graduate.  His record indicates he served for 2 years, 4 months, and 17 days.  The applicant was retained in the service for the convenience of the government.  The record documents no acts of valor or significant achievement.   



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains documentation that indicates court-martial charges were filed against the applicant for the following offenses:

      a. one specification of wrongful use and possession of marijuana
      b. two specifications of assault and battery

2.  On 12 November 1997, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense, or a lesser included offense.  The applicant indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  The applicant indicated he would submit a statement on his own behalf, however the statement is not in the available record.  The unit commander recommended disapproval and senior intermediate commanders recommended approval of an under other than honorable conditions discharge.  

3.  On 3 December 1997, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant was discharged from the Army on 12 December 1997, with a characterization of service of under other than honorable conditions.

5.  The applicant’s record of service does not show any record of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There are no negative counseling’s or actions under the Uniform Code of Military Justice.  However, there is Bar to Reenlistment dated 17 December 1996 which indicates the applicant received a company grade Article 15 for a violation of Article 86 of the Uniform Code of Military Justice, specifically for failing to report to his guard post.

2.  The Staff Judge Advocate’s memorandum also indicates the applicant received two Article 15s, for making a false statement and breaking restriction.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a copy of his DD Form 214.  

POST-SERVICE ACTIVITY: 

None provided with the application.  


REGULATORY AUTHORITY:

1.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

2.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

3.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of his discharge was carefully considered.  However, after examining the applicant’s record of service and the issue submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  The applicant contends that his discharge occurred many years ago and would like to receive benefits for the time he served.  However, the US Army does not have, nor has it ever had, a policy to upgrade a discharge based on time elapsed since the discharge.  Each case is decided on its own merits based on all factors contained in the official record or as submitted by the applicant.  Changes may be warranted if the Board determines the characterization of service or the reason for discharge or both were improper or inequitable.

4.  Moreover, eligibility for veteran's benefits to include medical and educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.


5.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the court-martial charges that were filed against him.  The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance.  

6.  Therefore, the reason for the discharge and characterization of service being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review   Date:  24 April 2013	Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA

Board Vote:
Character Change:  0	No Change:  5
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:			No
Change Characterization to: 		No Change	
Change Reason to:				No Change
Change Authority for Separation: 		No Change
Change RE Code to: 			No Change	
Grade Restoration to:			NA	
Other: 					NA







Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions



ADRB Case Report and Directive (cont)		AR20120017910

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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